Sex equality and pregnancy law Flashcards
Meaning of ‘pay’:
Definiton in Directive 2006/54/EC.
ECJ noted that pay can be ‘immediate or future’, as held in Barber.
Provided that remuneration is granted to the worker in due to the relationship between the worker and the employer in respect of employment.
What remuneration constitutes pay according to ECJ?
- Concessionary travel facilities (Garland;
- Sick pay (Rinner-Kuhn);
- Redundancy payments (Barber);
- Unfair dismissal compensation (Seymour-Smith);
- Occupational pensions (Bilka-Kaufhaus);
- Maternity benefits (Gillespie).
Retirement pensions included in pay?
Article 7 Social Security Directive 79/7.
Bilka-Kaufhaus: ECJ stated where supplements were made by an employer to the basic state pensions under a contractual agreement and where the amount was linked to pay, it was ‘pay’ for purposes of Article 157.
Equal value:
Enderby: medical professionals within the NHS were not considered as being work of equal value, statistics showed an appreciable difference between the roles;
Brunnhofer: the fact that a female employee and male comparator are classified in the same job category is not sufficient for stating that it is the same work of equal value. Only one indication amongst others that this criterion is met.
Burden of proof:
General rule: burden of proving sex discrimination lies with the complainant.
Employees who consider themselves victim must prove earning less than colleague of other sex and are performing the same work or work of equal value, comparable to that performed by the chosen comparator.
Burden of proof may shift when it is necessary to avoid depriving workers of equal treatment.
Indirect discrimination
Jenkins: difference in rates of remuneration between FT and PT employees does not breach Article 157 TFEU if based on objectively justified factors and does not discriminate directly or indirectly.
Vos: PT teacher, challenged that overtime worked by her was paid at lower hourly rate than a FT teacher.
Court said if it is found from evidence that percentage of PT workers who are women is higher than percentage of PT workers who are men, difference is not based on objective factors unrelated to sex, infringement of equality.
Employers’ objective justification on indirect discrimination:
Bilka-Kaufhaus, ECJ established authoritative test for objective justification:
“if undertaking is able to show that pay practice may be explained by objectively justified factors unrelated to grounds of sex…”
Positive aciton
Promotion of equal opportunities by removing existing inequalities which affect women’s opportunities. Article 157(4) TFEU: ‘ a view to ensuring full equality…’
Initial position:
Commission v France: French law which permitted collective agreements to provide special rights for women held to be unjustified.
Positive action, developed:
- Kalanke: a national rule providing that where genders equally qualified are applying for position with less women, women are automatically given the position. Direct discrimination.
- Marschall: applied for promotion and did not get it but woman did. If male candidate better qualified, then he should get post, not in breach of ET Dir. (Safety net, means that men not discrim against, women given equal opp).
Pregnancy, Directive 92/85/EC:
Introduce measures to encourage improvements in the safety and health at work and to determine rights of pregnant and breastfeeding workers. No need for comparator. Minimum maternity of 14 weeks.
ECJ case law following Pregnancy Directive:
- Webb: dismissal of pregnant worker because of pregnancy direct discrimination.
- Melgar: prohibition of dismissal also applied to fixed-term contracts; if non-renewal motivated by pregnancy then it is direct discrimination.
- Tele Danmark: 6 month contract, training 2, due to have baby in 5th. Dismissed after 1. Size of employer no relevance to issue of direct discrimination, and blanket application of the principle that pregnancy dismissals are unlawful is welcomed.
- Busch: employee under no obligation to inform her employer that she is pregnant; employer cannot rescind consent to return to work.
Illness resulting from pregnancy:
- Hertz: dismissal due to repeated absences due to pregnancy-related illnesses which continue after the maternity leave comes to end. ET Dir. does not apply because sick male workers can be dismissed in similar circumstances.
- Brown: dismissal resulting from time off taken due to pregnancy-related illness originating during pregnancy before ML commences is direct discrimination because the occurrence of risks is inherent in the pregnancy itself.
Parental leave Directive 2010/18/EU
All workers, both genders… to take time to care for children up to the age of 8, minimum period of 4 months.
- Meerts: workers are protected against less favourable treatment or dismissal;
- Tirol: right to return to work.
Parental leave directive, time off/work changes:
Workers may request changes to their working hours and/or patterns for a set period of time.
- Merino-Gomez: a woman should be entitled to take annual leave at a time other than during the period of her maternity leave.
Surrogate mothers:
- Mayr: directive prohibits discrimination against a woman who is undergoing IVF treatment but is not yet carrying an unborn child;
- CD: concerns a British woman who is the commissioning mother of a child who was genetically fathered by her husband. Directive only applies when same woman becomes pregnant, gives birth, and then takes maternity leave for the new-born baby. Commissioning mothers cannot go on maternity leave because they have not been pregnant.
